modern relaxation of the rule, are well known. Respecting seals, the same general principles apply to private and to municipal corporations. Thus, a corporation of the latter class would doubtless be bound equally with a private corporation by any seal which has been authoritatively affixed to an instrument requiring it, though it be not the seal regularly adopted.' On the other hand, it would not be bound by the affixing of either the regular or temporary seal by a person not legally and duly authorized. So, under the modern doctrine, a corporation can do an act in pais by an attorney in fact, and such attorney need not necessarily be appointed under seal.' § 131. The seal of a private corporation attached to an instrument does not prove its own authenticity; but it should be shown by evidence aliunde to be really the seal of the corporation. The same doctrine is, propably, applicable to the seal of a municipal corporation, except where changed by charter or statute, although it seems that it is usual in England to allow deeds and other instruments relating to real estate go to the jury when authenticated by the corporate seals of London, Edinburgh, or Dublin-these being corporations of great antiquity, or recognized by the legislature. The corporate seal attached to an instrument 1 5 Bank, &c. v. Railroad Company, 30 Vt. 159, 1858, per Redfield, C. J.; Tenney v. Lumber Company, 43 N. H. 343; Mill Dam Foundry v. Hovey, 21 Pick. 417; Porter v. Railroad Company, 37 Maine, 349; Angell & Ames Corp. sec. 217; Phillips v. Coffee, 17 Ill. 154; Stebbins v. Merritt, 10 Cush. 27; City Council v. Moorehead, 2 Rich. Law, 430; Grant on Corp. 59, and cases, and note author's opinion and his doubt as to the existence of any common law right to change the common seal. An impression of a corporate seal stamped upon and into the substance of the paper containing the instru ment is sufficient, without wafer or wax. Hendee v. Pinkerton, 14 Allen, 381. Koehler v. Iron Company, 2 Black, 715, 1862; Bank of Inland v. Evans, 33 Eng. Law and Eq. 23. Curry v. Bank, 8 Porter (Ala.) 361, 1839; Lathrop v. Bank, 8 Dana, 114; Abby o. Billups, 35 Miss. 618. • Den v. Vreelandt, 2 Halst. (N. J.) 352, 1800; Gilbert Ev. 19; Jackson v. Pratt, 10 Johns. 381; Moises v. Thompson, 9 Term R. 303; City Council v. Moorehead, 3 Rich. (South Car.) Law, 430; Foster v. Shaw, 7 Serg. & Rawle, 163; Ib. 318; Mann v. Pentz, 2 Sandf. Ch. 257. 5 Per Kinsey, C. J., Den v. Vreelandt, 2 Halst. (N. J.) 352. attested by the signatures of the proper officers, is prima facie evidence that it was lawfully placed there, and that the instrument is the act of the corporation.' § 132. The modern rule is that corporations may be bound by contracts not under seal, and the circumstances under which they will be bound have been stated by Story, J., in terms which have been approved by the courts of nearly every State in the Union. "Wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation; and all duties imposed on them by law, and all benefits conferred at their request, raise implied promises, for the enforcement of which an action lies." Levering o. Mayor, 7 Humph. (Tenn.) 553, 1847; Abbott Corp. Digest, tit. Seal, p. 725, sec. 31, and the many cases there cited; Benedict v. Denton, Walk. Ch. 336; Musser v. Johnson, 42 Mo. 74. • Bank of Columbia v. Patterson, 7 Cranch (U. S.) 299, 306, 1813; Bank . Wister, 2 Pet. 318; Davenport v. Insurance Company, 17 Iowa, 276; Ring v. Johnson County, 6 Iowa, 265. See, further, chapters on Contracts and Property, post, secs. 383. 750. Corporate seal affixed to the note of the corporation makes it a specialty, having in this respect the same effect as the seal of a natural person. Clarke v. Farmers'&c. Co., 15 Wend. 256; Ib. 265; Benoist v. Carondolet, 8 Mo. 250; Sturtevant v. Alton, 3 McLean, 393. Lease held void for want of the corporate seal. Kinzie v. Chicago, 2 Scam. (Ill.) 188. But otherwise of an authorized agreement by an agent of a corporation to sell lands: Legrand v. The College, 5 Munf. (Va.) 324; or authorized assignment of a lease: Sanford v. Tremlett, 42 Mo. 384. Corporate seal to conveyance by county commissioners: Bestor v. Powers, 2 Gilm. (Ill.) 126. Further, see Index-Seal. Mr. Broom gives an excellent view of the exceptions to the rule that corporations must contract by deed, as recognized and established by the modern English decisions. Broom Com. on Com. Law, 562-569. CHAPTER IX. MUNICIPAL ELECTIONS AND OFFICERS. § 133. In considering the Creation and Constitution of Municipal Corporations, we have now reached, in its order. the subject of MUNICIPAL ELECTIONS AND OFFICERS. It will be treated under the following heads: 1. Municipal Popular Elections-secs. 134-138. 2. Special Tribunal to Determine Election Contests for Municipal Offices-secs. 139-144. 3. Power to Create and Appoint Municipal Officers-secs. 145-152. 4. Oath and Official Bond-secs. 153-155. 5. Duration of Official Term-secs. 156-160. 6. Vacancies in Municipal Offices-sec. 161. 8. Resignation of Municipal Officers-secs. 163–167. 9. Compensation of Municipal Officers-secs. 168–173. 10. Liability of the Corporation to the Officer-sec. 174. 11. Liability of the Officer to the Corporation and to Others-sec. 175. 12. Amotion and Disfranchisement-secs. 177-194. Municipal Popular Elections. § 134. Elections by the people, with exceptions in a few States, are by folded or secret ballot, and not open or viva voce.' The qualifications of electors or voters are fixed by the constitution and laws, and cannot be changed by any ordinance or act of the corporation.' Residence for a certain Cooley Const. Lim. chap. XVII. 598, where the subject of Popular Elections, the Right to Participate therein, the Conditions Necessary to the Exercise of the Right, the Manner of Voting, the Conduct and Sufficiency of Elections are satisfactorily presented; and the rules and doctrines deduced from the cases are, in general, applicable to popular municipal elections. 2 Petty v. Tooker, 21 N. Y. 267; Commonwealth v. Woelper, 3 Serg. & period within the municipality is almost invariably required in express terms, as one of the qualifications of the right to vote at elections therein, and as one of the conditions of eligibility to hold a municipal office. Non-residents of the corporation have, however, been held competent to be elected to office when residence was not expressly required, but the decisions cannot, perhaps, be said to conclude the point,' and, if extended to the higher offices, are hardly Bawle, 29; People v. Phillips, 1 Denio, 388; Rex v. Spencer, 3 Burr. 1827; Rex &. Mayor of Weymouth, 7 Mod. 371; Newling v. Francis, 3 Term R. 189; Rex . Chitty, 5 Ad. & E. 609; Rex v. Bumstead, 2 B. & Ad. 699. Municipal officers may be elected from non-residents of the corporation when there is no statute or consitution prohibiting it, particularly when the office to be filled is one requiring professional skill, and not representative or legislative in its character. State v. Blanchard (city surveyor), 6 La. An. 515, 1851. The conclusion was reached with hesitation, but the whole court concurred. Ib. So in The State v. Swearingen, 12 Geo. 23, 1852, it was decided where the charter of the town provided "for the election of city officers by the people of the city qualified to vote," and was silent as to requiring the officers to be residents, that a person might legally be elected and qualified who was not a resident of the place. Residence as a qualification for municipal office: See Commonwealth v. Jones, 12 Pa. St. 365. Residents, who are: Cohen v. Wigfall, 8 Rich. Law, 237; 2 Ib. 489; Goldersleeve v. Alexander, 2 Speer (South Car.) 298. In England, by the Municipal Corporations Act (sec. 9), inhabitant householders resident within the borough, or within seven miles of the borough, and rated to the relief of the poor, are made burgesses or citizens. Before that act was passed, residence in the freeman or citizen was sometimes required, to render him eligible to office, although non-residents, wherever residing, might, by a similar perversion of the purposes of a municipal corporation, be admitted to freedom or membership, unless expressly restrained by the charter; and if residence was expressly required as a condition of eligibility, it was not necessary that the officer should continue to reside in the place while holding the office. Not only so, but it was held that where residence was necessary as a qualification during office, it was not, by implication, necessary that the person elected should have been a resident at the time of the election. And when inhabitancy was requisite, it meant not merely residence, but keeping a house within the place, and paying scot and lot. Willcock on Munic. Corp. 188, pl. 472; Ib. 191, pl. 481; Ib. 193, 488; Rex v. Monday, Cowp. 539; Rex v. Mallet, 2 Barnard. 408; Rex v. Cambridge, 4 Burr, 2008; Rex v. Heath, 1 Barnard. 417. These rules are of a very doubtful application in this country, since here all of the inhabitants are members of the corporation, and non-residents cannot become such. And, in general, it may be said that a person is an inhabitant or resident who has his domicil or home in the place; but it is foreign to the purpose of this consistent with the fundamental idea of municipal government. § 135. The choice of a disqualified person is ineffectual. Thus, if the law requires freeholders to be chosen for certain officers, the election of a person not a freeholder is void.' But unless the votes for an ineligible person are expressly declared to be void, the effect of such a person receiving a majority of the votes cast is, according to the weight of American authority, and the reason of the matter (in view of our mode of election, without previous binding nominations, by secret ballot, leaving each elector to vote for whomsoever he pleases), that a new election must be held, and work to enter into the difficult questions which have arisen with respect to residency and domicil. Hinds v. Hinds, 1 Iowa, 36; Story Confl. Laws, sec. 43; Putnam v. Johnson, 10 Mass. 488; Thorndike v. Boston, 1 Met. 245. Public officers vacate their office by permanent removal from the territorial limits of the corporation. Barre v. Greenwich, 1 Pick. 120; Rumsey v. Campton, 16 N. H. 567; Giles v. School District, 11 Fost. 304. But a temporary removal, with an intention to return, will not, of itself, have this effect. Van Orsdall v. Hazard, 3 Hill (N. Y.) 243, 1842; People v. Metropolitan Police Board, 19 N. Y. 201; Lyon v. Commonwealth, 3 Bibb (Ky.) 430; Rex v. Exeter, Comb. 197. "Nice questions," says Mr. Harrison (Munic. Manual for Upper Canada, 2a ed. 60, note), arise as to when a party can, or cannot be said to be a resident of a municipality. A man cannot, within the meaning of the municipal laws of Canada, be said to be resident in two municipalities at the the same time. A man's residence is where his home is situate-where his family live. An occasional absence from his home to attend to business in another municipality does not make his home less his residence. Where A. had a dwelling-house at Bowmanville, where his wife and family lived, but had a saw-mill and store and was postmaster in the township of Cartwright, which occasioned him frequently to visit that place, and who, while there, used to board with one of his men in a house owned by himself,—Held, that after voting in Bowmanville, he had no right to vote in Cartwright. The Queen ex rel. Taylor v. Cæsar, 11 U. C. Q. B. 461. Mere colourable residence is in no case sufficient. The King v. Duke of Bedford, 6 T. R. 560. Each case must, to a great extent, depend on its own circumstances. As to what is sufficient, see The King v. Sergeant, 5 T. R. 466; Bruce v. Bruce, 2 B. & P. 229; The King v. Mitchell, 10 East, 511; Whithorn v. Thomas, 7 M. & G. 1; The Queen ex rel. Forward v. Bartels, 7 U. C. C. P. 533. 1 1 Spear v. Robinson, 29 Maine, 531, 1849; State v. Swearingen, 12 Geo. 23, 1852; State v. Gastinel, 20 La. An. 114, 1868. |